Although discovery is part and parcel of litigation, it is universally regarded as expensive and burdensome, and (sometimes) ripe for sharp practices.  One area where the legitimate fact-finding purpose of discovery runs up against the hardship of discovery is where a court orders discovery to proceed while a motion to dismiss that would, if granted, resolve the matter, remains pending.

In some instances, when a defendant files a motion that will dispose of the case early in the litigation, the parties may informally agree to stay discovery until the judge rules on the motion. If the plaintiff wants to go ahead with discovery despite the undecided dispositive motion, a defendant may move to stay discovery.

There is no uniform standard for determining whether and under what circumstances discovery should be stayed in light of a potentially dispositive motion to dismiss. To the extent that a standard exists in the Virgin Islands, it appears to be that a stay is disfavored, but may be overcome with a “strong showing” of good cause. Weeks v. Leeward Islands Apothecaries, LLC, 1:09-CV-50, 2010 WL 2160281 (D.V.I. May 26, 2010). In practice, however, courts appear to “know it when they see it”—that is, they grant stays according to the circumstances of the case.

The discovery process is a necessary element of the litigation process and in many cases helps to facilitate a settlement. However, its effectiveness comes with a cost. Despite the flexibility of the “strong showing” approach, it would be better if there were a uniform standard whereby discovery can be stayed to conserve resources if resolution of the motion to dismiss will eliminate or significantly reduce the need for discovery.

The discovery process can be costly, time-consuming, and burdensome; the rules are complex to those unfamiliar with pre-trial procedure. However, it is a necessary element of the litigation process and in many cases helps to facilitate settlement. 

BoltNagi PC has seasoned trial attorneys in its Litigation Practice Group with years of litigation success.  If you find yourself or your business facing litigation contact BoltNagi PC today.